There cannot be day-to-day impediments by Delhi Lieutenant Governor (LG) in the elected government’s functioning as the responsibilities conferred on him are “not absolute”, the Supreme Court said on Wednesday.
In “tentative” observations, the apex court, while hearing a clutch of appeals of the Aam Aadmi Party (AAP) government on who enjoys supremacy over Delhi’s governance, said the aid and advice of the Chief Minister and his council of ministers are not “words in vacuum” and “some meaning has to be attached to it”.
During the arguments, senior advocate P Chidambaram, representing Delhi government, said the LG was not like the ‘Viceroy of the British Crown’ but only a representative of the President till he enjoyed the confidence of the highest office of the land.
A five-judge Constitution bench headed by Chief Justice Dipak Misra observed that differences of opinion between the LG and the government has to be with regard to policy matters and these differences “must be established through cogent reasons and not just for the sake of difference.”
“Responsibilities of the LG are not absolute and if you want to say ‘no’ to a policy matter then please send it to the President,” it said, adding “there cannot be day-to-day impediments in the functioning of the executive government.”
The bench, which also comprised Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said the difference of opinion was relatable to the aid and advice on the executive action and laws. The top court clarified that these were their tentative views for the time being which were subject to the arguments that could be advanced by the Centre, which is embroiled in the bitter tussle of power to govern the national capital.
“Originally there should not be any difference between the LG and the government with respect to policy matters and constitutional solutions have to be found to resolve the differences if any. Aid and advice of council of ministers are not words in vacuum and some meaning needs to be attached to it,” the bench said.
It said that “the ripples of the provision in the Constitution cannot derail the waves of the statute.”
Senior advocate Gopal Subramanium, who resumed his arguments today, said the tenet of Article 239AA are violated if cabinet advice is not binding on the LG and added that the Delhi High Court has said that aid and advice of council of ministers was not binding on the LG. “The LG is under constitutional obligation to adhere to the principles of cooperative federalism which is an aspect of constitutional statesmanship,” Subramanium said.
Justice Chandrachud said he agreed with the argument of constitutional statesmanship by the LG as it is an element of soft constitutional law.
Subramanium said if the aid and advice was not binding upon the LG, then it has no meaning at all and “if we look at the proviso in the law, then satisfaction of the LG is also a sense of executive satisfaction.” The senior lawyer, who concluded his nearly three days of arguments, said he was not claiming to be the monarch but wanted the democratic set-up to be protected and the motive of 239AA which related to Delhi was such that the National Capital Territory need not be without any protection.
Chidambaram initiated his arguments saying any interpretation of the Constitution, which will limit democracy, should be rejected by the apex court.
“What the High Court has done is upside down and made the LG as the administrative head. It has made the LG as the ‘Viceroy of British Crown’. He is only an agent of the President till the President deems him fit,” Chidambaram said. He said the LG has the extension of President’s power but cannot exercise all the powers of the President.
Referring to the GNCTD Act, Chidambaram said when a Bill is reiterated by the Delhi Assembly, the LG has either to bow to the people’s wish or refer the matter to the President in case of difference of opinion. But he cannot withhold or return it again.
The hearing remained inconclusive and would continue tomorrow. The apex court had yesterday observed that the position of Delhi was different from other states and the elected government was under an obligation to apprise the LG about policy decisions.
The Supreme Court had said there was no need for “fundamental concurrence” of LG on every aspect and there should be “real good reason” in case of difference of opinion over the decision of the government. It had said a balance needed to be maintained between the powers of the LG and the Chief Minister and the council of ministers.